The Voting Rights Act: Hard-Won Gains, An Uncertain Future

People wait in line outside the Supreme Court in Washington on Feb. 27, 2013, to listen to oral arguments in the Shelby County, Ala., v. Holder voting rights case. In June, the court struck down a key provision of the law that established a formula to identify states that may require extra scrutiny by the Justice Department regarding voting procedures.

Rep. John Lewis of Georgia testifies at a Senate Judiciary Committee hearing on the Voting Rights Act on Capitol Hill in Washington on Wednesday.

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Originally published on July 21, 2013 4:21 pm

Access to the polls has not always been assured for all Americans, and before the Voting Rights Act of 1965, many were subjected to so-called literacy tests and poll tax.

The law was created to tackle such injustices, but in June, the Supreme Court struck a key provision of the legislation. Section 4 established a formula determining which states and localities had to get federal approval (known as pre-clearance) before changing their voting procedures.

The provision applied to nine states, mainly in the South, with a history of voter discrimination. The court deemed it unconstitutional for relying on old data.

It is now up to Congress to figure out where the Voting Rights Act goes from here. Both the House and Senate held hearings this past week.

The Challenge For Congress

One of the first questions in these hearings was the threshold question, says NPR congressional correspondent Ailsa Chang. In other words: Do we even need Section 4, or can we rely on some other provision of the law? One of those other provisions might be Section 2.

"[It] allows people to bring lawsuits after voting changes have been made," Chang tells weekends on All Things Considered host Jacki Lyden. "But critics of that provision say litigation isn't a substitute [for Section 4]."

If, instead, Congress decides to write an updated formula for Section 4, it has quite a challenge ahead.

"Congress has to figure out what newer data would point to places where there is so much voter discrimination, those places need continual scrutiny," Chang says.

Chang says this will likely be a very slow process, since Congress acts slowly in general and because this legislation could potentially affect elections. Right now, Senate Democrats feel pretty strongly about restoring Section 4. House Majority Leader Eric Cantor says he wants to wants to ensure voting rights are protected, but what form that desire takes is unclear.

Democratic Sen. Dick Durbin isn't optimistic: "I understand the challenge from the Supreme Court, but in this political climate on Capitol Hill, what was once a very popular bipartisan issue is now, I'm afraid, divided on party lines."

Out Of The 'Penalty Box'

Some of the states that no longer need to get approval to changing voting rules have moved swiftly to enact new voting laws after the Supreme Court ruling. Texas, Mississippi, North Carolina and Alabama have either passed or are working on similar voter ID laws.

Alabama Attorney General Luther Strange says his state "has made light years of progress based on a law that was necessary in the 1960s."

"Alabama had a well-deserved reputation for denying people the vote in the 1960s and prior to that; the Voting Rights Act addressed that, and Alabama made strides," Strange says. "I'm glad now that we're out of that extra step so that we can be treated like the other states and go about setting elections procedures as we need to."

According to the Brennan Center for Justice, voter fraud is almost nonexistent, casting some doubt on the need for strict voter identification legislation. Since it can be difficult for some to get an ID, some critics say states that are enacting these laws are swapping a smaller problem (voter fraud) for a bigger one (access for voters). Strange says access to voting won't be an issue in Alabama.

"We've made it very clear ... we're going to do everything we can to make easy to vote and exercise your most precious right," he says, "even to the extent of providing free voter IDs [and] delivering them to people's houses. There's really no reason why someone who wants an ID can't get one."

An Emotional Fight

There is perhaps no one better in Congress to speak about the Voting Rights Act than Rep. John Lewis of Georgia, who testified before the Senate Judiciary Committee on Wednesday.

Lewis was instrumental in the law's creation. As a civil rights leader in the Jim Crow South, Lewis led sit-ins, participated in the Freedom Rides and helped head the Selma to Montgomery March in 1965.

"As we marched for the right to vote, more than 500 men, women and children were chased beaten, bloody and trampled by state troopers, some riding horseback," Lewis said before the committee.

Those attacks left Lewis with a cracked skull, but his will was strong. That day would come to be known as Bloody Sunday, and it spurred Washington to take action. Just a few months later, Lewis saw his goal become law when on Aug. 6, 1965, President Lyndon Johnson signed the Voting Rights Act.

"[He] gave me one of the pens he used to sign it," Lewis said Wednesday.

For Lewis, this isn't history in a book, but his life's work. He has been trying to take his emotions out of it, he says, but it's almost impossible.

"When the Supreme Court made the decision, I almost cried. I almost shed some tears," he says. "I kept saying to myself, 'I wish somehow the members of the Supreme Court — especially the five that voted to put a dagger in the heart and soul of the Voting Rights Act — could walk in our shoes.'"

Congress also noted, however, that the Voting Rights Act was still needed, and it had been used hundreds of times since 1982 to protect against discrimination.

But in his opinion, Chief Justice John Roberts suggested it is a new era. "Our country has changed," he wrote for the majority.

But Rep. Lewis says race is still very much at the forefront.

"I think there has been a deliberate and systematic effort on the part of certain forces in our country to take the whole idea of race out of public policy," he says. "Race is involved in everything that makes up America, and we cannot escape it. We have to deal with it face on."

While Lewis agrees that progress has been made, he says things like voter ID laws are just new ways to suppress voters. He also says they do not protect against fraud.

"There's been very few cases of [voter] fraud in any parts of our country," he says. "It is better to open up the political process. We have other means and methods to guard against fraud. It's just another device to make it harder. That's not right. That's not fair."

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Transcript

JACKI LYDEN, HOST:

It's WEEKENDS on ALL THINGS CONSIDERED from NPR News. I'm Jacki Lyden.

It wasn't so long ago in the South that African-American voters faced obstacles like this one.

REPRESENTATIVE JOHN LEWIS: They had to pass a so-called literacy test. They had to pay a poll tax. Some of the people around us had to attempt to count the number of bubbles in a bar of soap or the number of jelly beans in a jar.

LYDEN: That's Georgia Congressman John Lewis talking about growing up in 1940s Alabama. The Voting Rights Act of 1965 was created to tackle such injustices.

Late last month, though, the Supreme Court struck down Section 4, a key provision of the law. It set out a formula determining which states and localities had to get federal approval before changing their voting procedures. And it applied to nine states, mainly Southern, with a history of voter discrimination. The Supreme Court deemed it unconstitutional to rely on old data.

Now it's tasked Congress with trying to come up with a better way to determine which states should be subjected to federal oversight. That's our cover story today: the Voting Rights Act. The Supreme Court turns a page of history and asks Congress to write a new one.

(SOUNDBITE OF MUSIC)

LYDEN: It's up to Congress now to figure out where the Voting Rights Act goes from here. And to that end, both the House and Senate held hearings this past week.

(SOUNDBITE OF HEARING)

LEWIS: Mr. Chairman, I ask unanimous consent that my full statement be included in the record.

LYDEN: John Lewis testified before the Senate Judiciary Committee. There's perhaps no one better in Congress to speak about the Voting Rights Act since Lewis was pivotal to its creation. As a civil rights leader in the Jim Crow South, he led sit-ins, participated in the Freedom Rides and helped head the Selma to Montgomery march.

(SOUNDBITE OF HEARING)

LEWIS: On March 7, 1965, Hosea William, a staff person of Dr. Martin Luther King Jr., and I, attempted to lead a peaceful nonviolent march from Selma to Montgomery. As we marched for the right to vote, more than 500 men, women and children were chased, beaten, bloody and trampled by state troopers, some riding horseback.

LYDEN: Those attacks left Lewis with a fractured skull, but his will was whole. That terrible day would become known as Bloody Sunday. It spurred Washington to take action. Just a few months later, John Lewis saw his goal become law.

(SOUNDBITE OF HEARING)

LEWIS: And on August 6, 1965, President Lyndon Johnson signed the Voting Rights Act into law and gave me one of the pens he used to sign it.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT LYNDON JOHNSON: Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote.

LYDEN: For Lewis, this isn't history in a book. This is his life's work. And when I spoke to him, he told me he'd been trying to take his emotions out of it.

LEWIS: When the Supreme Court made a decision, I almost cried, I almost shed some tears, and I didn't want to cry. I wanted to be strong, because I felt that so many people who worked to try to get people registered and others who tried to register and to be able to vote, they never lived to experience the act of voting. Some was killed. I will never forget the three civil rights workers that I knew: Andy Goodman, Mickey Schwerner and James Chaney, three young men.

And I kept saying to myself, I wish somehow the members of the Supreme Court, and especially the five that voted to put a dagger in the heart and soul of the Voting Rights Act, could walk in our shoes.

LYDEN: Those three young men John Lewis named were working to register African-American voters in Mississippi in 1964. The Klu Klux Klan murdered them before they could see the passage of the Voting Rights Act just a year later.

My conversation with Congressman John Lewis continues in a bit. But first, for more on this week's congressional hearings, we check in with NPR's congressional reporter Ailsa Chang.

AILSA CHANG, BYLINE: The threshold question in these first hearings was simply, do we even need Section 4 anymore, or could we just rely on some other provision of the law, like Section 2? So Section 2 allows people to bring lawsuits after voting changes have been made, but critics of that provision say litigation just isn't a substitute.

LYDEN: So, Ailsa, if Congress were to rewrite Section 4, what would that look like?

CHANG: Chief Justice John Roberts said the current Section 4 was unconstitutional because it relied on decades-old data and eradicated practices. And he's basically leaving it open to Congress to come up with a new formula based on what he calls, quote, "current conditions." Now how do you assess current conditions? That's a tough question. Congress has to figure out what newer data would point to places where there's so much voter discrimination, those places need continual scrutiny.

LYDEN: Some states moved pretty swiftly after the Supreme Court decision to enact new voting laws. Run us down that list.

CHANG: So Texas officials say they're going to start enforcing strict photo ID requirements. So voters will have to present their driver's licenses, military ID cards or passports at polling places before they can vote. Now critics of those kinds of laws say that just makes it harder for poorer people and minorities to vote because many of them don't have driver's licenses or passports. Mississippi and Alabama had also passed voter ID laws, but they hadn't yet received preclearance for those laws. Now they say they're going to just begin enforcing the laws.

And North Carolina is now poised to get a photo ID law on the books. It may be a really strict law. The state Senate just introduced a bill that won't let college students, for example, use their student IDs at polling places. And the bill wouldn't let voters use out-of-state driver's licenses either.

LYDEN: NPR's Ailsa Chang.

Alabama is one of those states, now free to make voting changes without federal approval. It's moved quickly to enact its own voter ID law. Luther Strange, the attorney general for the state, says Alabama has come a long way.

LUTHER STRANGE: Alabama has made light years of progress based on a law that was necessary in the 1960s.

LYDEN: And Strange calls the Supreme Court ruling a victory.

STRANGE: It's been a very good situation for Alabama and other states that were in what some have called the penalty box. Alabama had a well-deserved reputation for denying people the vote in the 1960s and the years prior to that. The Voting Rights Act addressed that issue, and it addressed it very well, and Alabama made great strides. And I'm glad now that we're out of that extra step so that we can be treated like the other states and go about setting our election procedures as we need to.

LYDEN: What does the Supreme Court decision mean for Alabama's voter ID law?

STRANGE: Well, it means that Alabama does not have to now go to the Justice Department or a court in Washington and ask permission to implement a law that was passed.

LYDEN: The Brennan Center for Justice says that voter fraud is practically nonexistent, but that for some people, including minorities, poor people, elderly people, getting an ID isn't easy. With a voter ID law, do you think there's any risk that you're swapping a smaller problem for a bigger one?

STRANGE: We've made it very clear in working with the governor here in Alabama that we're going to do everything we can to make it easy to vote and exercise your most precious right and, for example, even to the extent of providing free voter IDs, delivering to people's houses. So there's really no reason why someone who wants an ID can't get one.

LYDEN: Alabama's Attorney General Luther Strange.

Congress last reauthorized the Voting Rights Act just seven years ago. It noted that minority voter turnout and representation had improved precisely because of the law's success. Indeed, in 2009, Mississippi and Alabama led the nation in the percentage of African-American state legislators. But Congress also noted that the Voting Rights Act was still needed and had been used hundreds of times since 1982 to protect against discrimination.

In his opinion, Chief Justice John Roberts suggested that it's a new era. Our country has changed, he wrote for the majority. But John Lewis says that race is still very much at the forefront.

LEWIS: I think there had been a deliberate and systematic effort on the part of certain forces in our country to take the whole idea of race out of public policy when it come to voting rights, education, transportation. Race is involved in everything that make up America, and we cannot escape it. We have to deal with it face on.

LYDEN: And yet the decision argues that while the South may have had a racist past, the case being made now is that the past is the past. What do you say to that?

LEWIS: We have made changes. We have made a lot of progress. The polls taxes are no longer used. People may not be harassed or intimidated. But there's other devices that have been put forth - ending early voting, voter ID.

LYDEN: And almost as soon as Section 4 was struck down, a handful of states, including Texas, Mississippi and Alabama, did move to enact voter ID laws. You've compared them to a poll tax. They argue that they're protecting the democratic process against fraud. What's wrong with that?

LEWIS: There's been very few cases of fraud in any parts of our country. It is better to open up the political process. We have other means and methods to guard against fraud. It's just another device to make it harder. That's not right. That's not fair.

LYDEN: But what is the right and fair way forward? It's now up to Congress to decide. NPR's Ailsa Chang once again.

CHANG: It's hard to get Congress to do anything. And now we're talking about legislation that affects their jobs. So this will very likely be a very slow process. Senate Democrats feel pretty strongly about restoring Section 4. House Majority Leader Eric Cantor says he wants to ensure voting rights are protected, but what form that desire is going to take is unclear.

Here's how Democratic Senator Dick Durbin described how hopeful he feels right now about the whole thing.

SENATOR DICK DURBIN: I understand the challenge from the Supreme Court, but in this political climate on Capitol Hill, what was once a very popular bipartisan issue is now, I'm afraid, divided on party lines.

LYDEN: But it's likely that it's the voting lines come the next elections that will be the true test of the Supreme Court ruling.